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1 STEPHANIE J. FINELLI, SBN 173462
Law Office of Stephanie J. Finelli MAR 1 1 2011
2 1007-7th Street, Suite 500
Sacramento, CA 95814
3 tel 916-443-2144 By D .lOH.-iS'"""!
D.r'i.n " a . s
fax 916-443-1511
4
Attorney for Plainfiffs,
5
FLORENTINE and RODNEY ABBOTT
6
7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 IN AND FOR THE COUNTY OF SACRAMENTO
9
10 FLORENTINE AND RODNEY ABBOTT, Case No • 07AS04450
11 Plaintiffs, REPLY TO OPPOSITION TO MOTION FOR
NEW TRIAL
12 vs
Trial Date. January 18, 2011
13 RONALD BRITSCHGI, et. al.. Judgment: February 3, 2011
14 Defendants Hearing: March 18, 2011
Dept' 43
15 Judge: Brian Van Camp
16 and related cross-acfions
17
18 A. There Are no Procedural Defects in the Motion
19 In support of their mofion, plainfiffs submitted the Declarafion of Stephanie J. Finelli,
20 along with the moving papers themselves This declarafion sets forth the factual bases for the
21 motion. The other bases are legal in nature and are set forth in the Memorandum of Points &
22 Authorities
23
24 B. The Standard for the Granting of a New Trial Has Been Met
25 Defendants concede that a new trial must be granted where a miscarriage of justice
26 occurs under Code of Civil Procedure section 657, and where error is prejudicial under section
27 475. They further concede that a new trial should be granted where the preponderance of the
28
Reply to Opposition to Motion for New Trial •
1 evidence is opposed to the findings of the jury. (See Points & Authorifies in Opposition to
2 Mofion for New Trial at p. 4 )
3 Here, as set forth in the moving papers, there were irregularities in the proceedings and
4 the jury's verdict is not supported by substantial evidence. Moreover, the special verdict form is
5 inconsistent not only with the findings therein but with the evidence. A new trial is warranted
6
7 1. Plaintiff Was Unable to Fully Try the Case
8 Defendants assert that the trial court never stated there would be a mistrial if the case
9 were not concluded by January 28, 2011, and asserts the court suggested that if it were not
10 concluded by that date, trial would confinue to Saturday, January 29, 2011. Plaintiffs' counsel
11 does not recall that Plaintiffs' counsel recalls mention was made that ifthe jury instructions and
12 special verdict forms were not concluded by Friday evening, they would be concluded on
13 Saturday. But she recalls no discussion of having the jury appear on Saturday to hear additional
14 evidence. Obviously a review ofthe transcripts would reveal what was actually said.
15 This case is similar to In re Marriage of Carlsson in that the trial needed to be concluded
16 by a specific fime and no opportunity for rebuttal was given. It is a published Third District
17 Court of Appeal decision that provides that such is a denial of due process Obviously, unlike
18 Carlsson, the judge in the instant case did not walk off the bench. But the time pressures were
19 just as real and just as prejudicial.
20 Defendants blame plaintiffs' counsel for using what they describe as 75% of the trial
21 time. That is an imfair characterization. This was a complex case in which many foundational
22 facts needed to be set forth in order for the jury to even understand what the case was about
23 Establishing the relationship of the parties, the formation of the contract, the way in which the
24
work was performed, and the outcome were all essential facts that were laid out in plaintiffs
case in chief This was ground that defendants did not need to re-break in their own case-in
25
chief Moreover, plainfiffs called many defense witnesses during their own case-in-chief which
26
defendants then questioned as part of plamfiffs' case.
27
28
Reply to Opposition to Motion for New Trial - 2
1 Plainfiffs never sought to "use up" defendants' fime This would not have been
2 productive, given the intense time constraints and the fact that plaintiff understood the case was
3 headed for a mistrial ifit was not concluded by January 28
4 Prior counsel's time estimate is not relevant. The parties were given a total of nine days,
5
the first of which was used to pick a jury. The fact remains this was a complex case for which
plaintiff did not have ample time. That plaintiffs did not seek a continuance is not a waiver ol
6
their right to put on their entire case; trial had already been continued several times and the
7
parties were desparate to actually try the case.
8
Plaintiffs explained that the lack of rebuttal was prejudicial. Obviously no one can say
9
with certainly what would have happened had rebuttal evidence been given. It need only be
10
probable that a different result would have occurred had the evidence been included. This is
II similar for additional witnesses like Gary Hunt. Mr. Hunt was designated as a percipient expert.
12 He was present just after the concrete was finished and was a percipient expert as to what the
13 jobsite looked like just after the concrete had been fully poured and before any framing had
14 begun.
15
Regarding the cross-examination of Jason Newlin, in their memorandum of costs,
defendants seek $38,025.00 for pre-trial fime supposedly spent by Mr. Newlin for a whopping
16
211.25 hours This was just pre-trial time Plaintiffs should have been allowed time to examine
17
Mr. Newlin as to what inspections he had performed at the property in forming his opinions
18
without the threat of either a mistrial or the specter of using up defendants' fime.
19
The verdict form itself demonstrates that thejury was confused as to the evidence and the
20
meaning of the evidence. As set forth below, they obviously did not understand what was even
21 required ofplainiiffs under the contract. This was largely the result of a rushed trial. A new trial
22 should be granted.
23
24 2. Substantial Evidence Does not Support the Verdicts
25
Defendants argue that the was "ample evidence . . . that Plainfiffs had certain obligations
under the contract and that they failed to fulfill them." (P&A at p. 10.) Defendants argue that
26
Plainfiffs' obligations under the contract were not limited to making fiill payments, but extended
27
to verifying finished elevafions (Ibid.) Thus, defendants argue that substanfial evidence
28
Reply to Opposition to Motion for New Trial - 3
I supports a finding that plaintiffs did not verify elevations This argument demonstrates why a
2 new trial is warranted.
3 The interpretation of a contract is the province of the court, not the jury. The contract
4 does not require that Plamtiffs provide the elevafions; that portion ofthe contract is under "scope
5
of work." This Court may and should interpret the contract to require that the elevations be
approved prior to pour. Thus, by pouring the concrete prior to any approval of the elevations
6
defendants were in breach ofthe contract, under the plain language ofthat contract
7
Moreover, assuming that plaintiffs were somehow obligated to approve elevations and
8
failed to do so, the fact is that defendants poured the foundation—and apparently did so in the
9
absence of any approval of elevafions. This is not only a breach of the contract itself; it is
10 negligence. If, in fact, thejury found that plainfiffs did not verify or approve the elevations, then
11 a defense verdict on the negligence claim is unsupported by substantial evidence.
12 The experts stated that if defendants poured the concrete without knowing the elevations,
13 such was below the standard ofcare. Defendants argue (1) plaintiffs breached the contract by
14 failing to approve the elevations (thus conceding there were no approved elevations), and that (2)
defendants were not negligent in pouring the concrete because they had approved elevations. It
15
carmot be both. This is precisely why a new trial is required in this case.
16
17
C. The Verdict Is Contrary to Law and the Judgnient Is Inconsistent With the Verdict
18
As set forth above, the verdict cannot be reconciled If plainfiff breached the contract by
19
failing to provide the elevations, then defendants must have been negligent by pouring the
20 concrete in the absence of any approved elevations. The verdict form and defendants
21 interpretation thereof only further confirms that the verdict is contrary to law.
22
23 D. This Court Has Wide Latitude in Granting the Motion to Do Justice
24 The purpose of a mofion for a new tnal is to "allow a reexaminafion of an issue of fact."
25
(Fountain Valley v Dept of Veterans Affairs (1998) 67 Cal.App.4th 743, 751.) The new trial
does not necessarily mean the plaintiff must win; only that given the evidence presented and the
26
findings ofthe jury, that a new trial is in order. As such, the court has wider latitude in granting
27
such a mofion than it does in granfing a mofion for directed verdict or even JNOV. (Ibid) "A
28
new trial motion allows a judge to disbelieve witnesses, reweigh evidence and draw reasonable
Reply to Opposition to Motion for New Trial - 4
inferences contrary to that of the jury, and still, on appeal, retain a presumption of correctness
that will be disturbed only upon a showing of manifest and unmistakable abuse." (Ibid.)
Here, this Court should exercise its discretion to grant a new trial for the reasons set forth
herein.
Dated: March 11, 2011 . ^_
tephanie J. Finelli,
Attorney for Plaintiffs
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Reply to Opposition to Motion for New Trial - 5
PROOF OF SERVICE
CASE NAME. Abbott v. Britschgi
CASE NUMBER: Sacramento County Superior Court 07AS04450
I declare that:
I am a citizen ofthe United States and a resident ofthe County ofSacramento. I am,
and at all times menfioned herein was, an acfive member of the State Bar of Califomia and
not a party to the above-entitled cause. My business address is 1007 Seventh Street, Suite
500, Sacramento, California 95814.
On March 11,2011, pursuant to CCP §1013A(2), I served the following-
REPLY TO OPPOSITION TO MOTION FOR NEW TRIAL
BY FAX AND BY MAIL: by faxing and mailing a copy ofsaid document to the following:
Gregory Federico
Archer Norris
310 University Ave., Suite 110
Sacramento, CA 95825
fax 916-646-5696
BY MAIL: by depositing a copy of said document in the United States mail in Sacramento,
Califomia, in a sealed envelope, with postagefiallyprepaid, addressed as follows:
Richard W. Freeman, Jr.
Wood, Smith, Henning & Berman
1401 Willow Pass Road, Suite 700
Concord, CA 94520-7982
I declare under penalty of perjury under the laws of the State of Cajifomia the
foregoing is true and correct.
DATED. March 11,2011
JtephanieLFineni
Preview
E; *" ''*'/ '^ •" '^ ^' '-^'' ii'i t 1 STEPHANIE J. FINELLI, SBN 173462 Law Office of Stephanie J. Finelli MAR 1 1 2011 2 1007-7th Street, Suite 500 Sacramento, CA 95814 3 tel 916-443-2144 By D .lOH.-iS'"""! D.r'i.n " a . s fax 916-443-1511 4 Attorney for Plainfiffs, 5 FLORENTINE and RODNEY ABBOTT 6 7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 IN AND FOR THE COUNTY OF SACRAMENTO 9 10 FLORENTINE AND RODNEY ABBOTT, Case No • 07AS04450 11 Plaintiffs, REPLY TO OPPOSITION TO MOTION FOR NEW TRIAL 12 vs Trial Date. January 18, 2011 13 RONALD BRITSCHGI, et. al.. Judgment: February 3, 2011 14 Defendants Hearing: March 18, 2011 Dept' 43 15 Judge: Brian Van Camp 16 and related cross-acfions 17 18 A. There Are no Procedural Defects in the Motion 19 In support of their mofion, plainfiffs submitted the Declarafion of Stephanie J. Finelli, 20 along with the moving papers themselves This declarafion sets forth the factual bases for the 21 motion. The other bases are legal in nature and are set forth in the Memorandum of Points & 22 Authorities 23 24 B. The Standard for the Granting of a New Trial Has Been Met 25 Defendants concede that a new trial must be granted where a miscarriage of justice 26 occurs under Code of Civil Procedure section 657, and where error is prejudicial under section 27 475. They further concede that a new trial should be granted where the preponderance of the 28 Reply to Opposition to Motion for New Trial • 1 evidence is opposed to the findings of the jury. (See Points & Authorifies in Opposition to 2 Mofion for New Trial at p. 4 ) 3 Here, as set forth in the moving papers, there were irregularities in the proceedings and 4 the jury's verdict is not supported by substantial evidence. Moreover, the special verdict form is 5 inconsistent not only with the findings therein but with the evidence. A new trial is warranted 6 7 1. Plaintiff Was Unable to Fully Try the Case 8 Defendants assert that the trial court never stated there would be a mistrial if the case 9 were not concluded by January 28, 2011, and asserts the court suggested that if it were not 10 concluded by that date, trial would confinue to Saturday, January 29, 2011. Plaintiffs' counsel 11 does not recall that Plaintiffs' counsel recalls mention was made that ifthe jury instructions and 12 special verdict forms were not concluded by Friday evening, they would be concluded on 13 Saturday. But she recalls no discussion of having the jury appear on Saturday to hear additional 14 evidence. Obviously a review ofthe transcripts would reveal what was actually said. 15 This case is similar to In re Marriage of Carlsson in that the trial needed to be concluded 16 by a specific fime and no opportunity for rebuttal was given. It is a published Third District 17 Court of Appeal decision that provides that such is a denial of due process Obviously, unlike 18 Carlsson, the judge in the instant case did not walk off the bench. But the time pressures were 19 just as real and just as prejudicial. 20 Defendants blame plaintiffs' counsel for using what they describe as 75% of the trial 21 time. That is an imfair characterization. This was a complex case in which many foundational 22 facts needed to be set forth in order for the jury to even understand what the case was about 23 Establishing the relationship of the parties, the formation of the contract, the way in which the 24 work was performed, and the outcome were all essential facts that were laid out in plaintiffs case in chief This was ground that defendants did not need to re-break in their own case-in 25 chief Moreover, plainfiffs called many defense witnesses during their own case-in-chief which 26 defendants then questioned as part of plamfiffs' case. 27 28 Reply to Opposition to Motion for New Trial - 2 1 Plainfiffs never sought to "use up" defendants' fime This would not have been 2 productive, given the intense time constraints and the fact that plaintiff understood the case was 3 headed for a mistrial ifit was not concluded by January 28 4 Prior counsel's time estimate is not relevant. The parties were given a total of nine days, 5 the first of which was used to pick a jury. The fact remains this was a complex case for which plaintiff did not have ample time. That plaintiffs did not seek a continuance is not a waiver ol 6 their right to put on their entire case; trial had already been continued several times and the 7 parties were desparate to actually try the case. 8 Plaintiffs explained that the lack of rebuttal was prejudicial. Obviously no one can say 9 with certainly what would have happened had rebuttal evidence been given. It need only be 10 probable that a different result would have occurred had the evidence been included. This is II similar for additional witnesses like Gary Hunt. Mr. Hunt was designated as a percipient expert. 12 He was present just after the concrete was finished and was a percipient expert as to what the 13 jobsite looked like just after the concrete had been fully poured and before any framing had 14 begun. 15 Regarding the cross-examination of Jason Newlin, in their memorandum of costs, defendants seek $38,025.00 for pre-trial fime supposedly spent by Mr. Newlin for a whopping 16 211.25 hours This was just pre-trial time Plaintiffs should have been allowed time to examine 17 Mr. Newlin as to what inspections he had performed at the property in forming his opinions 18 without the threat of either a mistrial or the specter of using up defendants' fime. 19 The verdict form itself demonstrates that thejury was confused as to the evidence and the 20 meaning of the evidence. As set forth below, they obviously did not understand what was even 21 required ofplainiiffs under the contract. This was largely the result of a rushed trial. A new trial 22 should be granted. 23 24 2. Substantial Evidence Does not Support the Verdicts 25 Defendants argue that the was "ample evidence . . . that Plainfiffs had certain obligations under the contract and that they failed to fulfill them." (P&A at p. 10.) Defendants argue that 26 Plainfiffs' obligations under the contract were not limited to making fiill payments, but extended 27 to verifying finished elevafions (Ibid.) Thus, defendants argue that substanfial evidence 28 Reply to Opposition to Motion for New Trial - 3 I supports a finding that plaintiffs did not verify elevations This argument demonstrates why a 2 new trial is warranted. 3 The interpretation of a contract is the province of the court, not the jury. The contract 4 does not require that Plamtiffs provide the elevafions; that portion ofthe contract is under "scope 5 of work." This Court may and should interpret the contract to require that the elevations be approved prior to pour. Thus, by pouring the concrete prior to any approval of the elevations 6 defendants were in breach ofthe contract, under the plain language ofthat contract 7 Moreover, assuming that plaintiffs were somehow obligated to approve elevations and 8 failed to do so, the fact is that defendants poured the foundation—and apparently did so in the 9 absence of any approval of elevafions. This is not only a breach of the contract itself; it is 10 negligence. If, in fact, thejury found that plainfiffs did not verify or approve the elevations, then 11 a defense verdict on the negligence claim is unsupported by substantial evidence. 12 The experts stated that if defendants poured the concrete without knowing the elevations, 13 such was below the standard ofcare. Defendants argue (1) plaintiffs breached the contract by 14 failing to approve the elevations (thus conceding there were no approved elevations), and that (2) defendants were not negligent in pouring the concrete because they had approved elevations. It 15 carmot be both. This is precisely why a new trial is required in this case. 16 17 C. The Verdict Is Contrary to Law and the Judgnient Is Inconsistent With the Verdict 18 As set forth above, the verdict cannot be reconciled If plainfiff breached the contract by 19 failing to provide the elevations, then defendants must have been negligent by pouring the 20 concrete in the absence of any approved elevations. The verdict form and defendants 21 interpretation thereof only further confirms that the verdict is contrary to law. 22 23 D. This Court Has Wide Latitude in Granting the Motion to Do Justice 24 The purpose of a mofion for a new tnal is to "allow a reexaminafion of an issue of fact." 25 (Fountain Valley v Dept of Veterans Affairs (1998) 67 Cal.App.4th 743, 751.) The new trial does not necessarily mean the plaintiff must win; only that given the evidence presented and the 26 findings ofthe jury, that a new trial is in order. As such, the court has wider latitude in granting 27 such a mofion than it does in granfing a mofion for directed verdict or even JNOV. (Ibid) "A 28 new trial motion allows a judge to disbelieve witnesses, reweigh evidence and draw reasonable Reply to Opposition to Motion for New Trial - 4 inferences contrary to that of the jury, and still, on appeal, retain a presumption of correctness that will be disturbed only upon a showing of manifest and unmistakable abuse." (Ibid.) Here, this Court should exercise its discretion to grant a new trial for the reasons set forth herein. Dated: March 11, 2011 . ^_ tephanie J. Finelli, Attorney for Plaintiffs 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Reply to Opposition to Motion for New Trial - 5 PROOF OF SERVICE CASE NAME. Abbott v. Britschgi CASE NUMBER: Sacramento County Superior Court 07AS04450 I declare that: I am a citizen ofthe United States and a resident ofthe County ofSacramento. I am, and at all times menfioned herein was, an acfive member of the State Bar of Califomia and not a party to the above-entitled cause. My business address is 1007 Seventh Street, Suite 500, Sacramento, California 95814. On March 11,2011, pursuant to CCP §1013A(2), I served the following- REPLY TO OPPOSITION TO MOTION FOR NEW TRIAL BY FAX AND BY MAIL: by faxing and mailing a copy ofsaid document to the following: Gregory Federico Archer Norris 310 University Ave., Suite 110 Sacramento, CA 95825 fax 916-646-5696 BY MAIL: by depositing a copy of said document in the United States mail in Sacramento, Califomia, in a sealed envelope, with postagefiallyprepaid, addressed as follows: Richard W. Freeman, Jr. Wood, Smith, Henning & Berman 1401 Willow Pass Road, Suite 700 Concord, CA 94520-7982 I declare under penalty of perjury under the laws of the State of Cajifomia the foregoing is true and correct. DATED. March 11,2011 JtephanieLFineni